in Re Zach Brown

• Court: Texas Supreme Court
• Decided: September 9, 2022
• Docket: 20-0992
• Status: Published

Opinion

Supreme Court of Texas ══════════ No. 20-0992 ══════════

In re Zach Brown, Relator

═══════════════════════════════════════ On Petition for Writ of Mandamus ═══════════════════════════════════════

PER CURIAM

Justice Lehrmann did not participate in the decision.

Zach Brown sued FedEx Ground Package System, Inc., alleging

injuries resulting from a collision with a FedEx truck.

A week before trial, Brown served FedEx with a subpoena. The

subpoena commanded the presence at trial of “[a] Corporate

Representative for FedEx Ground Package System, Inc.” living within

150 miles of the Harris County Courthouse.

FedEx moved to quash the trial subpoena. FedEx argued that

“[t]here is no legal authority for compelling a corporate representative

of a party to attend trial and testify,” other than through taking a

representative’s oral deposition under Texas Rule of Civil Procedure 199. Brown responded that Rule 176.2(a) grants that authority, arguing

that it permits a party to serve a compliant trial subpoena upon a

corporate representative. The trial court denied FedEx’s motion to

quash.

FedEx sought mandamus relief in the court of appeals,1 which

granted relief. 609 S.W.3d 153, 162 (Tex. App.—Houston [14th Dist.]

2020). The court of appeals relied exclusively on Rule 199, analogizing

it to the corresponding Federal Rule of Civil Procedure, 30(b)(6). Id. at

160-62. The court observed that the federal courts widely interpret Rule

30(b)(6) to exclude the power to subpoena a corporate representative to

testify at trial. The court of appeals agreed with FedEx that, similarly,

Rule 199 does not provide such authority. Id. Without addressing

Brown’s argument that Rule 176 confers that authority, the court held

that the trial court erred in denying FedEx’s motion to quash the trial

subpoena. Id.2

1While the mandamus proceeding was pending in the court of appeals, Brown withdrew the subpoena and argued that the issue was moot. But FedEx noted that Brown had not abandoned “his pursuit to require FedEx Ground to present a corporate representative to testify at trial.” Brown does not raise the mootness issue in this Court. 2The court of appeals also granted relief from Brown’s trial subpoena seeking to compel FedEx employee Michael Sear, whom Brown’s counsel deposed in Pennsylvania and who lives outside the geographic limits of the

2 In this Court, Brown seeks relief from the court of appeals’ ruling.

Brown does not challenge the court of appeals’ interpretation of Rule

199. Rather, he urges that Rule 176 provides authority for the trial

subpoena, and the court of appeals did not address this argument.

When granting relief in an original proceeding, “the court must

hand down an opinion as in any other case.” TEX. R. APP. P. 52.8(d).

Such an opinion must address “every issue raised and necessary to final

disposition of the appeal.” TEX. R. APP. P. 47.1; see Cardwell v.

Whataburger Rests. LLC, 484 S.W.3d 426, 428 (Tex. 2016).

Brown raised the argument that corporate-representative trial

subpoenas are available under Rule 176 in both the trial court and the

court of appeals. Brown observes that Rule 176.6(b) states that a

corporation may “designate one or more persons to testify on its behalf

as to matters known or reasonably available to the organization” in

response to a valid subpoena “commanding testimony.” TEX. R. CIV. P.

176.6(b). He further notes that an appropriate corporate-representative

subpoena may command a person to “attend and give testimony at a . . .

trial.” TEX. R. CIV. P. 176.2(a).

district court’s subpoena authority. 609 S.W.3d at 159-60. Brown does not challenge this part of the court of appeals’ order, which remains intact.

3 Without comment on the merits, we conclude that the court of

appeals was obliged to address Brown’s Rule 176 arguments, together

with FedEx’s other arguments challenging the subpoena,3 before

granting FedEx relief.

* * *

We hold that the court of appeals erred in quashing a

corporate-representative trial subpoena as lacking authority under Rule

199 without addressing whether Rule 176 applies and examining the

proper scope of that rule in the trial context. Accordingly, without

hearing oral argument, TEX. R. APP. P. 52.8(c), we conditionally grant

the petition for a writ of mandamus in part and direct the court of

appeals to vacate its order granting relief quashing Brown’s trial

subpoena. The writ will issue only if the court of appeals does not

comply.

OPINION DELIVERED: September 9, 2022

3 Among other arguments, FedEx also urged in the court of appeals that the trial subpoena was unduly burdensome and costly, given that Brown’s counsel had deposed FedEx’s safety manager, whom FedEx made available for the topics the subpoena intended to cover, and both parties planned to play videotaped excerpts from the manager’s deposition at trial. See 609 S.W.3d at 162 n.7. It further urged that its safety manager resided outside the trial court’s subpoena range, and the rules do not permit a subpoena commanding a corporate representative to attend trial if no corporate representative with personal knowledge of relevant facts resides within the subpoena range.